Disparate Impact

The Obama administration’s efforts to apply “disparate impact” theory to the criminal justice system continue. In a “Dear Colleague” letter to state and local courts last week, the administration warned, “In court systems receiving federal funds, these practices [i.e., the enforcement of fines and fees] may also violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, when they unnecessarily impose disparate harm on the basis of race or national origin.”

The trouble is that the enforcement of just about any criminal law is going to have a disproportionate impact on some racial or ethnic group — unless, perversely, law enforcement officials engage in race-based decisionmaking in their enforcement of those laws. But, of course, politically correct race-based decisionmaking by government officials is precisely what this administration likes and wants.

Not incidentally, the administration is quite wrong to say that Title VI incorporates a “disparate impact” standard; the Supreme Court has ruled repeatedly that it does not. But unfortunately that has not stopped the Obama administration from aggressively using its Title VI regulations and rules in this way.

A Pleasant Surprise – There was a pleasant surprise in Inside Higher Ed this week: an article, involving student discipline, that does not complain about racial discrimination. “Inspired by findings of bias at the K-12 level, a study sought to see if higher ed officials would impose harsher penalties on hypothetical black students than on white ones” — and found that, no, they did not.

By the way, I noted that, while it’s true that there are studies to the contrary regard K-12 school discipline, “There's also evidence that the racial disparities in K-12 suspensions are explained by differences in behavior rather than discrimination.”

But this fact is routinely ignored, I’m afraid. For example, a New York Times story last week headlined “Disparities in Discipline Found in Charter Schools” did not note any effort to control for this variable.

Politics and Hypocrisy in the Merrick Garland Nomination – There’s been lots of ink spilled on President Obama’s nomination of Merrick Garland to the Supreme Court. I’ll just make two quick points.

First, in listening to the President’s speech making the announcement, I have to say that it was really, really rich to hear any liberal bemoaning politics getting mixed into the judiciary and to hear this president in particular lecturing anyone on following the Constitution.

Second, and speaking of which, I wonder if it is just a coincidence that the announcement was made right after the big primary results involving Ohio, Florida, and several other states.

Consider: If it were more certain that Donald Trump would be the Republican nominee, as it would have been had he won Ohio, then perhaps there would have been less reason to push aggressively a (relatively) moderate appointment this year — that is, less reason to think that someone other than Hillary Clinton would be making the appointment if it waited until next year, and less reason to fear that the appointment could be made by Ted Cruz, an actual conservative.

Lamar Alexander versus the EEOC – Finally, I want to give a lengthy but well-deseved shout-out this week to Sen. Lamar Alexander, who has been rightfully aggressive in keeping tabs on the Obama administration’s Equal Employment Opportunity Commission. Last week he introduced legislation to subject the Obama administration to its own proposal to increase by 20 times the employment data it currently collects from each of the 61,000 private employers on their 63 million employees.

Sen. Alexander said, “This agency is supposed to be protecting American workers from discrimination. Instead it’s coming up with an absurd rule forcing employers to submit new pay data on 63 million private sector employees. This legislation would give the EEOC a dose of its own medicine — requiring them to collect the same data on federal employees, to see how much that costs in time and money before it makes that requirement of 61,000 private sector employers.”

Currently, according to Sen. Alexander’s press release, the EEOC requires employers with 100 or more employees to submit to the agency 180 different pieces of information about those employees each year. Under the EEOC’s new rule, that number would increase by 20 times, from 180 to 3,660 for each employer’s establishment.

The new bill, titled the “EEOC Reform Act,” would require the EEOC to calculate the cost of imposing its own rule on the federal government so that the EEOC better understands the burden the rule adds to private employers.

Alexander noted that it’s “especially ironic that the rule has been submitted for review under the Paperwork Reduction Act.”

Alexander added that what the EEOC should instead be doing is working through its backlog of more than 76,000 unresolved complaints of discrimination.

This new rule is likely to worsen that backlog, Alexander said, as the agency cannot handle its current complaints of discrimination and will now be sifting through the millions of pieces of new data.

Alexander also noted that, in 2014, he released a staff report on the EEOC that found the agency was pursuing high-profile lawsuits without a complaint, while facing a backlog of almost 71,000 unresolved complaints of discrimination from individuals who filed charges (that number has since increased to more than 76,000).

Sen. Alexander’s new bill would require the EEOC to reduce its backlog from 76,000 unresolved complaints to 3,660 — the same number of unresolved cases as the number of data points required by the new EEOC rule — before it can impose the proposed rule.

The libertarian Cato Institute was kind enough to ask me to contribute an article to its annual Cato Supreme Court Review, inviting me to write on the Supreme Court’s recent (and unfortunate) decision to allow “disparate impact” causes of action under the Fair Housing Act.

So I thought I would excerpt some of that article for this week’s email, and have done so below. You can read the full article here.

I should also note that last week I spoke at Cato about the case on a civil-rights panel. You can watch the event here (“Panel II: Civil Rights”); I’m introduced starting at the 0:22:10 mark, and my discussion runs from 0:23:40 through 0:40:25.

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Introduction

In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, the Supreme Court at last resolved the issue of whether “disparate impact” causes of action may be brought under the Fair Housing Act, which was first passed in 1968 and then substantially amended and expanded in 1988. In brief, disparate impact cases are based on an inference of illegal discrimination if a defendant’s actions have a disproportionate adverse effect on individuals in a protected class, such as race. By contrast, disparate treatment cases, which are indisputably covered by the Act, are triggered when a defendant’s actions arise out of a discriminatory motive or intent. … Justice Anthony Kennedy wrote the 5-4 majority opinion in Inclusive Communities, in which he was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justice Alito’s dissent was joined by the remaining justices; Justice Clarence Thomas also wrote a separate dissenting opinion …

The Court’s decision is disappointing. It fails to follow the clear language of the statute and will not only result in unfair liability for many defendants, but will encourage race-based decisionmaking in the housing area—exactly what the Fair Housing Act was meant to prohibit. The only silver linings are that Justice Kennedy’s opinion itself recognizes these problems, and some of the language toward the end might be useful in stemming the worst abuses.

To elaborate: The question presented in this case was, “Are disparate-impact claims cognizable under the Fair Housing Act?” Under a disparate-impact claim, discriminatory motive is irrelevant: It need not be alleged or proved, and it doesn’t even matter if the defendant proves that there was no actual disparate treatment. If a policy or procedure results in a disproportion of some sort—on the basis not only of race, color, or national origin but also (under the FHA) of religion, sex, or familial status (that is, having children)—then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent, and in its application. The defendant can prevail only by showing—to the satisfaction of a judge or jury who may know or care nothing of the defendant’s needs—some degree of “necessity” for the policy. This numbers-driven, we-don’t-much-care-about-your-reasons approach inevitably results in pushing potential defendants away from perfectly legitimate and race-neutral policies and toward race-based decisionmaking: again, just the opposite of what civil-rights laws are supposed to do.

This article will begin by summarizing the various opinions in the case, and will then explain some of the problems with the disparate-impact approach, both generally and with respect to housing discrimination in particular. It will then discuss what might be done to address these problems in the future, through litigation and through legislation.

...

Problems with the Disparate-Impact Approach

In General As noted, under a disparate-impact claim of discrimination, discriminatory motive is irrelevant: It need not be alleged or proved, and it doesn’t even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort, then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent, and in its application. The defendant can prevail only by showing—to the satisfaction of a judge or jury who may know or care nothing of the defendant’s needs—some degree of “necessity” for the policy.

Now, suppose that you are a potential defendant and that you have some non-discriminatory selection criterion that has helped you run your business well, but the criterion has a disparate impact on some group. You know you are vulnerable to a lawsuit, which you may or may not win, depending on the judge or jury you draw, and you know that lawsuits are expensive, win or lose. If you don’t want to get sued—and who does?—the potential of a disparate-impact lawsuit is going to push you to do one of several things, none of which is good. You might keep the criterion but apply it in a way that gets your numbers right: In other words, you will adopt surreptitious quotas. Or you might get rid of the criterion altogether, and just accept the fact that your business will not be run quite as well as it could be. Or you might decide to replace the old criterion with a new one, which you will choose and/or apply in a race-conscious way. You might, that is, now choose a criterion because of the racial outcomes that will result, or choose some criterion that can be applied in a biased way so that the resulting racial double standard will ensure that the numbers come out right. No matter what, you are no longer using the criterion you freely chose because you thought it to be the best, but are instead weighing race—directly or indirectly—in what you do.

In other words, we’re supposed to stop judging people by the content of their character, and start judging them by the color of their skin. In addition to this moral dilemma, there is this overwhelming practical one: There is probably no selection or sorting criterion that does not have a disparate impact on some group or subgroup.

And here’s the most fundamental point of all: If a business, agency, or school has standards for hiring, promoting, admissions, or offering a mortgage that aren't being met by individuals in some racial or ethnic groups, there are three things that can be done. First, the standards can be relaxed for those groups. That’s what racial preferences do. Second, the government or aggrieved private party can attack the standards themselves. That’s what the disparate-impact approach to enforcement does. Third, one can examine the underlying reason why a disproportionate number of individuals in some groups aren't meeting the standards—such as failing public schools or being born out of wedlock—and do something about that. But this option holds little interest on the political left.

Speaking of which, the Obama administration has made no secret of its love for disparate-impact civil-rights enforcement, and has been aggressive in applying it to every imaginable situation. In employment, for example, the government complains if fire or police departments administer physical or written tests that have politically incorrect results, or if companies use criminal background checks; in voting, it objects if voter ID is required; in education, it is hostile to school discipline policies if they have a disproportionate racial or ethnic result; it has even insisted on drawing distinctions between acceptable and unacceptable pollution, depending on the skin color and national origin of those affected by the pollution. The disparate-impact approach is also employed to require the use of a foreign language—on driver’s license exams, for example—on the theory that using only English might have a disproportionate effect on the basis of national origin. And it has been used to pressure banks with regard to their lending requirements, even though many believe this to have been a contributing cause of the mortgage meltdown and the following recession. …

III. Going Forward

Litigation

While the Supreme Court’s ruling here is misguided, potential litigants should not lose sight of this counterintuitive fact: The law is actually better now than it was before Justice Kennedy wrote the opinion.

This is true partly because the bar was so low: All the courts of appeals to entertain this issue had adopted this approach, too, and the Obama administration and its allies in the civil rights establishment were already interpreting the law this way. So things could not have gotten a lot worse, no matter what the Court had done.

It is also true, however, that the law is now better because Justice Kennedy’s opinion recognizes that the disparate-impact approach can lead to very bad results. … [T]he Court has now set some limits on the law that will be useful. For example, Kennedy warns the lower courts against “second-guess[ing]” the nondiscriminatory reasons for challenged policies, requires a “robust causality requirement” rather than relying simply on racial disproportions, recognizes that “racial quotas” and “racial considerations” and “abusive . . . claims” can result from threatened and actual lawsuits, cautions that any “remedial orders must be consistent with the Constitution.” He all but says that he expects the plaintiffs to lose in this case. He even calls Justice Alito’s dissent, which of course makes similar points, “well-stated.”

Given that the Court was unanimous, then, in recognizing the constitutional problems and bad policy results that can arise from the disparate-impact approach, litigators should continue to press courts to reject or at least limit the approach.

For example, the door is still open for courts to reject disparate impact use under the Equal Credit Opportunity Act, to limit it under Section 2 of the Voting Rights Act, and to strike down disparate-impact regulations that have been promulgated under Title VI of the 1964 Civil Rights Act. (Those regulations have been used, for example, to challenge school discipline, policing policies, and English-language requirements where they have a disproportionate effect on this-or-that racial or ethnic group.)

…

Legislation

While much can be accomplished through litigation in stemming the abuses of the disparate-impact approach to civil rights enforcement, ultimately there is no substitution for action by Congress, which ought now to amend the Fair Housing Act. And, while at it, Congress should clarify that, in other contexts as well, the disparate-impact approach is invalid. Most civil rights laws have no “disparate impact” provisions—rather, they prohibit actual disparate treatment—but they have been expanded to include disparate impact through agency interpretation and unwarranted court rulings. The FHA is, of course, a case in point. Thus, Congress should make clear that laws prohibiting discrimination do not extend to mere disparate impact. Legislation has been drafted to do just that, and includes the FHA and a number of other statutes.

…

Conclusion

The disparate-impact approach to civil-rights enforcement is untenable as a matter of law and policy. It second-guesses nondiscriminatory selection criteria and encourages race-based decisionmaking. Those are disturbing abuses of federal power at the expense of liberty and limited federal government. As a general matter, the presumption should be that the decisions of private, state, and local actors are no business of the federal government; an exception can be made in extraordinary circumstances of racial discrimination, but the disparate-impact approach is used precisely when discrimination has not been shown. And the problem is compounded here since it will be the federal government that is encouraging discrimination.

While Justice Kennedy’s opinion for the Court in Texas Department of Housing and Community Affairs v. Inclusive Communities Project unfortunately now allows this approach under the Fair Housing Act, it recognizes the problems with it, leaving the door open to future litigation that limits this approach under that statute, as well as to litigation that challenges or limits the approach under other statutes. Instead of leaving this matter to the courts and the uncertain course of future litigation, however, Congress should act to preclude or at least limit the disparate-impact approach.

This year the Supreme Court had agreed to resolve a fundamental question about the Fair Housing Act that it has never answered: Can you be found guilty of racial discrimination if you have not engaged in racial discrimination?

Suppose, for example, that the owner of an apartment complex decides that she does not want to rent units to individuals who have been convicted of drug offenses. She makes that decision without regard to race, her policy on its face does not treat people differently because of race, and indeed she enforces it in an evenhanded way, so that it applies equally to all applicants, without regard to race. Should she be liable for racial discrimination under the Fair Housing Act if it turns out that the policy in her neck of the woods has a disproportionate effect on this or that racial or ethnic group?

The Obama administration and the civil-rights establishment say, “Yes,” even though most everyone else would say, “No.” The administration and the civil-rights groups are afraid, in particular, that the Supreme Court will answer the question, “No,” too, and so they want very much to keep the Court from resolving this issue.

The Supreme Court last week ruled 5–4 (Justice Kennedy writing the majority opinion, joined by the four liberals) that “disparate impact” claims may be brought under the Fair Housing Act. The Court’s decision is, needless to say, disappointing. It fails to follow the clear language of the statute, and it will encourage race-based decision-making in the housing area — exactly what the Fair Housing Act was meant to prohibit. The only silver lining is that Justice Kennedy’s opinion itself recognizes this problem, and some of the language toward the end will be useful in stemming the worst abuses.

To elaborate: The question presented in this case was, “Are disparate-impact claims cognizable under the Fair Housing Act?” Under a disparate-impact claim, discriminatory motive is irrelevant: It need not be alleged or proved, and it doesn’t even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort — on the basis not only of race, color, or national origin but also of religion, sex, or familial status (that is, having children) — then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent, and in its application. The defendant can prevail only by showing — to the satisfaction of a judge or jury who may know or care nothing of the defendant’s needs — some degree of “necessity” for the policy.

This numbers-driven, we-don’t-much-care-about-your-reasons approach inevitably results in pushing potential defendants away from perfectly legitimate and race-neutral policies and toward race-based decision-making: again, just the opposite of what civil-rights laws are supposed to do.

Justice Alito wrote the principal dissent (joined by Scalia, Thomas, and the chief justice) in today’s case, and he had much the better of the argument: that the words of the statute, as well as its history and purpose, do not contemplate such lawsuits. Justice Thomas also wrote a separate dissent of his own, devoted to attacking the Supreme Court’s decision in Griggs v. Duke Power Co. (1971), which started all this disparate-impact nonsense.

But now I will say something counterintuitive: The law is actually better now than it was before Justice Kennedy’s decision came down today.

This is true mainly because the bar is so low: All the courts of appeals to entertain this issue had adopted this approach, too, and the Obama administration and its allies in the civil-rights establishment were already interpreting the law this way. So things could not have gotten a lot worse, no matter what the Court had done today.

It is also true, however, that the law is now better because Justice Kennedy himself recognizes that the disparate-impact approach can lead to very bad results. The last part of his opinion sets some limits on it that will be useful. He warns courts against “second-guess[ing]” the nondiscriminatory reasons for challenged policies, requires a “robust causality requirement” rather than relying simply on racial disproportions, recognizes that “racial quotas” and “racial considerations” and “abusive . . . claims” can result from these lawsuits and just the threat of them, and that any “remedial orders must be consistent with the Constitution.” Justice Kennedy all but says that he expects the plaintiffs to lose in this case. He even calls Justice Alito’s dissent, which of course makes similar points, “well-stated.”

Given that the Court was unanimous, then, in recognizing the constitutional problems and bad policy results than can arise from the disparate-impact approach, conservative litigators have no reason not to continue to press courts to reject or at least limit the approach in other cases. For example, the door is still open for courts to reject its use under the Equal Credit Opportunity Act, to limit it under Section 2 of the Voting Rights Act, and to strike down disparate-impact regulations that have been promulgated under Title VI of the 1964 Civil Rights Act.

And then there is Congress, which ought now to amend the Fair Housing Act. And, while it is at it, Congress should clarify that in other contexts as well, the disparate-impact approach is invalid. We’ve even drafted for it the legislation it needs to pass.

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By the way, I was interviewed by National Public Radio, among other media, about the case, and you can listed to that interview here (I come in at about the 3-minute mark).

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Let’s end on a positive note, though: The Supreme Court has also announced that it will grant review (again) in Abigail Fisher v. University of Texas, as the Center for Equal Opportunity had urged it to in an amicus brief we joined and help write in the case. The litigation involves a challenge to the university’s use of racial and ethnic preferences in student admissions.

In case you missed it, on February 26 I had an op-ed in the Wall Street Journal titled “How Not To Fight Discrimination.” Here it is:

Welcome to the era of "disparate impact."

The Obama administration this month issued regulations formally adopting the "disparate impact" approach to its enforcement of the Fair Housing Act, the 1968 law designed to protect buyers and renters from discrimination (racial and otherwise). This approach is increasingly becoming standard in housing and every area of the law.

Last week I spoke at Harvard Law School against the use of a “disparate impact” approach in civil-rights law. It went very well, and I thought in this week’s email I would give you an account of what I said.

Under a disparate-impact claim of discrimination, discriminatory motive is irrelevant: It need not be alleged nor proved, and it doesn’t even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort — not only on the basis of race, color, or national origin, but also religion, sex, or whatever — then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent, and in its application.

The defendant can prevail only by showing – to the satisfaction of a judge or jury who may know or care nothing of the defendant’s needs – some degree of “necessity” for the policy.

The Obama administration has made no secret of its love for this approach to civil-rights enforcement, and it has been aggressive in applying it to every imaginable situation. In employment, for example, it complains if fire or police departments administer physical or written tests that have politically incorrect results, or if companies use criminal background checks; in voting, it objects if voter ID is required; in education, it is hostile to school discipline policies if they have a disproportionate racial or ethnic result; it has even insisted on drawing distinctions between acceptable and unacceptable pollution, depending on the skin color and national origin of those affected by the pollution.

The disparate impact approach is also used to require the use of a foreign language – on driver’s license exams, for example – on the theory that using only English might have a disproportionate effect on the basis of national origin. And it has been used to pressure banks with regard to their lending requirements, even though many believe this to have been a contributing cause of the mortgage meltdown and the following recession.

The disparate-impact approach pushes potential defendants to do one or both of two things: Get rid of perfectly legitimate selection criteria, or apply those criteria in a race-conscious way so that the resulting racial double standard will ensure that the numbers come out right.

In other words, we’re supposed to stop judging people by the content of their character, and start judging them by the color of their skin.

One would also expect that, if the government favors the use of the disparate-impact approach, it would at least answer some fundamental questions like how to measure the kind and degree of disparate impact that is required and what sort of rebuttal is needed. But usually there’s none of that, and the resulting problems are myriad and severe.

For example, what should decisionmakers do if a practice has a disparate impact in one geographic location but not in another? Or, if the impact ebbs and flows over time? What should landlords do if a policy (for instance, excluding felons as tenants) has an unfavorable disparate impact on potential tenants of a particular race, but is welcomed by the incumbent tenants who are predominately of that same race?

And what if a practice is favorable for some racial minority groups (say, Asian Americans) but not for others (say, Latinos) — and, what’s more, the opposite is at the same time true for some minority subgroups (thus, unfavorable for Hmong but favorable for Cuban Americans)? And remember, too, that “majority” groups — whites and men and Christians, for example — must be able to bring these lawsuits, too, or you’ve added an even greater equal protection problem.

Thus, for example: (a) a foreclosure policy may have no disparate impact on a particular group in pre-recession 2006, but a severe one in 2009; (b) an income-requirement may have no disparate impact on Latinos in Nashville but a severe one in Denver; this may mean that two companies with identical policies have very different liability risks, or the same company may be liable in one city but not in the other (but should the cities be considered separately if it’s the same company?); and (c) the use of credit scoring may have a disparate impact on Latinos but not Asians, but there may be no disparate impact on Cubans and a severe one on the Hmong.

It is astonishing to interpret a national civil-rights statute in a way that makes identical conduct in one city illegal while allowing exactly the same conduct in another city, just because of the different racial makeup of the two cities.

The fact of the matter is, there is probably NO selection criteria that does not have a disparate impact on some group or subgroup.

There’s an even more fundamental problem: It is often hard to say whether the impact a practice has on a group is adverse or not. In fact, all three cases that the Supreme Court has recently granted review in, involving the use of “disparate impact” under the Fair Housing Act, illustrate this. In the first, was it bad for blacks that landlords who disproportionately rented to blacks were being cited for violating safety and health code requirements? That was the claim! In the second, was the urban renewal there bad for blacks? That was the claim there, too.

And in the case currently before the Court, is it bad for blacks that low-income housing is being disproportionately located in black areas? Once again, that is the claim. But poor black people might prefer to have housing opportunities near where they already live rather than a long way away, and they could complain about the disparate impact of deliberately changing the system so that they had fewer such opportunities. Yes, it might interfere with social engineering that would force blacks to relocate to white areas, but might not even the aim of greater integration be met, at least to some degree (depending on racial breakdown of low-income housing recipients — a breakdown that might vary from city to city and county to county) by encouraging non-blacks (not just whites, but also Latinos and Asians) to live in black areas?

These problems make it difficult to decide not only whether there is a disparate-impact in the first place, but also how to weigh properly the defendant’s rebuttal, which in the public housing context, for example, will often involve balancing myriad and hard-to-quantify interests.

Here’s the most fundamental point of all: If a business, agency or school has standards for hiring, promoting, admissions or offering a mortgage that aren't being met by individuals in some racial and ethnic groups, there are three things that can be done. First, the standards can be relaxed for those groups. That is what racial preferences do. Second, the government can attack the standards themselves. That is what the disparate-impact approach to enforcement does. Third, one can examine why a disproportionate number of individuals in some groups aren't meeting the standards — such as failing public schools or being born out of wedlock—and do something about it. But this option holds little interest on the political left.

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One other item: I’ve written recently about the Center for Equal Opportunity’s opposition to the automatic reenfranchisement of felons. Well, the Maryland state legislature has sent to its new Republican governor Larry Hogan a bill that would relax the state's already liberal felon voting law so that felons would be able to vote automatically on release from prison — and even if they have not completed their parole and probation.

Such automatic reenfranchisement is premature and unwise, If you aren’t willing to follow the law yourself, then you can’t demand a role in making the law for everyone else, which is what you do when you vote. The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison. After all, the unfortunate truth is that most people who walk out of prison will be walking back in. See this paper, just published by the Heritage Foundation, that I cowrote.

“Quid Pro Quota” is the apt title of an editorial this month in the Wall Street Journal (behind the paywall here). Here’s the story: Earlier this year, the Supreme Court was poised to hear oral arguments in the fully briefed Magner v. Gallagher, a case presenting the issue of whether a “disparate impact” cause of action may be brought under the Fair Housing Act.

It’s felicitous that two days after Martin Luther King Day this year, the Supreme Court will be hearing oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case involves the “disparate impact” approach to civil-rights enforcement, and that approach is contrary to Dr. King’s famous dream of a day when Americans would be judged by the content of their character rather than the color of their skin.

Suppose that the owner of an apartment complex decides that she does not want to rent units to people with recent convictions for violent crimes. She makes this decision for obvious reasons, namely that such criminals are unreliable tenants and that their presence makes it harder to rent other units and more likely that current tenants will decide to leave. She does not adopt this policy because she thinks it will disproportionately exclude members of this or that racial or ethnic group — indeed, she is completely unaware of what demographic impact it will have — and she applies it evenhandedly, without regard to skin color or national origin. What’s more, she can prove all this in court.

Can she nonetheless be liable for racial discrimination if her policy turns out to exclude members of some racial groups more frequently than members of other racial groups?

The Obama administration says yes — and the Supreme Court will determine in the Texas case if that’s right. In the meantime, a federal district court has said no, and struck down the administration’s regulations to the contrary.

In the administration’s view, and according to those regulations, which were issued by the Department of Housing and Urban Development, if a policy has this sort of “disparate impact,” as it is called, then that’s enough to make the landlord liable. So she must then prove — to the satisfaction of the HUD bureaucrats, a federal judge, or a jury — that there is some high degree of “necessity” providing “legally sufficient justification” for her policy.

And even if she shows this necessity, she can still lose if the government (or a civil-rights plaintiff) persuades the judge or jury that there was some other policy she could have followed that would have been practically as good and would not have resulted in those bad numbers.

The Obama administration has made no secret of its love for this approach to civil-rights enforcement, and it has been aggressive in applying it to every imaginable situation. In employment, for example, it complains if a fire or police department administers physical or written tests that have politically incorrect results, or if a company uses criminal background checks; in voting, it objects if voter ID is required; in education, it is hostile to school discipline policies if they have a disproportionate racial or ethnic result; it has even insisted on drawing distinctions between acceptable and unacceptable pollution, depending on the skin color and national origin of those affected by the pollution.

The disparate-impact approach is also applied to require the use of a foreign language — on driver’s-license exams, for example — on the theory that using only English might have a disproportionate effect on the basis of national origin. And it has been used to pressure banks and other institutions with regard to their lending requirements, even though many believe this to have been a contributing cause of the mortgage meltdown and the following recession.

The disparate-impact approach pushes potential defendants to do one or both of two things: get rid of perfectly legitimate selection criteria, or apply those criteria in a race-conscious way so that the resulting racial double standard will ensure that the numbers come out right. In other words, we’re supposed to stop judging people by the content of their character, and start judging them by the color of their skin.

While the Obama administration’s enforcement policies are bizarre, the other two branches of government are also at fault and can likewise help address the damage that’s being done.

The courts have often blessed these lawsuits even when they are inconsistent with the underlying civil-rights statutes. The Supreme Court has the opportunity in the Texas case to end such lawsuits under the Fair Housing Act.

Congress can play a role, too. It should change those statutes that allow for disparate-impact lawsuits, like Title VII of the 1964 Civil Rights Act, which deals with employment discrimination. The Voting Rights Act also has disparate-impact provisions in it. If Congress won’t take them out, it should at least not put any new ones in, no matter what the civil-rights groups demand.

If Congress won’t change these statutes, then the Supreme Court should strike them down or at least limit them. After all, they explicitly require decision makers to weigh skin color in their actions — a requirement that the Constitution generally forbids, and that is at odds with Dr. King’s dream.

First of all, a Happy Thanksgiving to you and yours from the Center for Equal Opportunity! We at CEO have much to be thankful for this year, and that certainly includes supporters like you.

One thing we would not put on our most-thankful-for list, however, is wacky interpretations of the civil-rights laws. Speaking of which …

The Supreme Court granted review earlier this month in Magner v. Gallagher, which presents the question whether a “disparate impact” cause of action can be brought under the Fair Housing Act. Such lawsuits would allow plaintiffs to challenge housing-related practices that lead to disproportionate racial or ethnic results, whether or not they have anything to do with actual discrimination. For example, a preference for tenants without criminal records could be attacked if this or that racial or ethnic group was more likely to have such a record. Many lower courts have recognized disparate-impact lawsuits, alas, but the Supreme Court has never resolved the issue.

Here’s hoping the third time’s the charm. The Supreme Court last week granted review in a case presenting the issue whether “disparate impact” claims may be brought under the Fair Housing Act. This is the third term in a row the Court has done so; in the preceding two, the Left succeeded in scuttling the cases before the Court could decide them.

In a disparate-impact case, the plaintiff does not have to prove racial discrimination, but only a racial disproportion. So, for example, a landlord who refused to rent to people with a history of drug-dealing, or had income below a certain level, or who had poor credit histories, could be sued if any such criteria had a disproportionate effect on this or that racial or ethnic group. It would be up to the landlord to prove some degree of “necessity” for her policy, even if was nondiscriminatory by its terms, in its motive, and in the way she applied it.

The Center for Equal Opportunity has been heavily involved in all three cases. Here’s an amicus brief that we joined and helped write in the latest matter, discussing the case and why the Court should hear it. We don’t believe that the Fair Housing Act covers “discrimination” that is not actually discrimination.

By the way, just before the Court’s announcement, I was quoted in a Bloomberg News article about the case, here.

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And speaking of “disparate impact”: The Obama administration’s Department of Education last week announced that it is sending a long (37 page) “Dear Colleague” letter to all states, school districts, and schools, warning them about any racial disparities in any of their programs, and including academic and extracurricular programs, teaching, technology and instructional materials, school facilities, and I suppose anything else.

The asserted authority for this is Title VI of the 1964 Civil Rights Act, which bans discrimination on the basis of race, color, and national origin. Nothing wrong with that statute, which the Supreme Court has held bans only actual discrimination (“disparate treatment”), but the Obama administration makes clear that it will be using DoEd’s regulations to challenge disproportions even when there is no actual discrimination (“disparate impact”).

As the administration said last week, “Under Title VI, States, school districts, and schools must not implement policies or practices for providing educational resources that disproportionately affect students of a particular race, color, or national origin, unless the policies and practices are educationally necessary and there are no comparably effective alternatives that can achieve the same goals with less adverse effect.”

This, of course, is the administration’s favorite mode of civil-rights enforcement (it’s already announced it will take this approach with respect to school discipline), and it has all kinds of bad side-effects, such as encouraging race-based decisionmaking by educators (“we’ve got to get our numbers right”), and discouraging perfectly legitimate policies that have disproportionate effects (as almost all policies do).

So this is a bad letter. But let me elaborate a bit more on a couple of points.

First, it is breathtaking in its scope. For example, the Obama administration has given notice that it will be looking not only at funding disparities within school districts, but between them (see page 1, second footnote; and pages 5 and 11; note also references in its accompanying press release to “zip codes” and “family income,” which are not racial classifications). It will look askance at racial imbalances in gifted and talented programs, AP classes, and the like (pages 3–4, 11–12). Thus, “The selection of schools to offer particular programs and the resources made available for the success of those programs may not disproportionately deny access to students of a particular race or national origin. Also, the policies for recruitment and admission to particular schools or programs, both within and across schools, should not deny students equal access on the basis of their race.” Hear that, Bronx High School of Science? And it will look at “student achievement outcomes, graduation and retention-in-grade rates” (page 9).

As I’ve already noted, the principal problem with the guidance is its aggressive use of the disparate-impact approach. This is a bad approach under any circumstances, but the version of it embraced by the guidance is particularly pernicious — and legally dubious. The burden of proving a disparate-impact charge here should at all times rest on the government; the school district should never have more than the burden of producing evidence; but the letter indicates to the contrary. Also, the correct formulation of what the produced evidence has to show is “whether a challenged practice serves, in a significant way, the legitimate educational goals of the school”; the DoEd formulation is the more stringent “necessary to meet an important educational goal.” The guidance is also misleading when it asserts the Supreme Court has said nothing to undermine the disparate-impact approach under this statute; it has, beginning with the very opinion the guidance cites (footnote 33).

By the way, it appears that Senator Lamar Alexander (R., Tenn.), the ranking member on the Senate’s education committee, doesn’t think much of DOE’s guidance either: He’s called on the Obama administration to rescind it.

One last point about the guidance: The public has the opportunity to comment (footnote 3): “If you are interested in commenting on this guidance, please send an e-mail with your comments to
This email address is being protected from spambots. You need JavaScript enabled to view it.
, or write to the following address: Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue, S.W., Washington, D.C. 20202.”

As Eric Holder’s Justice Department attacks voter-ID laws in Texas and North Carolina, Hans von Spakovsky of the Heritage Foundation and I have written a paper that warns the courts that they should be wary of construing Section 2 of the Voting Rights Act to find liability when only a “disparate impact” on the basis of race has been shown.

“Disparate impact” is the favored but dubious legal theory of the Obama administration. It’s being used to attack everything from election integrity to the financial industry when DOJ doesn’t have any evidence of intentional discrimination. This theory lets DOJ attack completely race-neutral laws and practices that it doesn’t like for policy reasons.

We argue that under Section 2, courts should require some evidence of underlying disparate treatment on the basis of race. In addition, the courts should consider the state’s legitimate, nondiscriminatory interest in a challenged practice, such as preventing voter fraud and maintaining public confidence in the fairness and integrity of the electoral process.

Our paper can be found here, and this email briefly summarizes its arguments.

The potential conflict between Section 2 and the Constitution. In the wake of the Supreme Court’s decision last summer in Shelby County v. Holder, which struck down the coverage formula for Section 5 of the Voting Rights Act, the Obama administration has decided to bring lawsuits under another VRA provision — Section 2 — to challenge antifraud measures. The administration is likely to assert that Section 2, which is a nationwide provision, can be used to strike down such voter-ID laws whenever they have a disproportionate racial effect.

But construing Section 2 to create liability whenever there is a mere “disparate impact” with respect to race raises serious constitutional problems — problems that can be avoided if the statute is given a narrower, and at least equally plausible, interpretation.

Here’s why the pure “disparate impact” approach creates a problem: The 14th and 15th Amendments prohibit state actions only where there is “disparate treatment” on the basis of race. The U.S. Supreme Court has made clear that in the context that means actions undertaken with racially discriminatory intent.

Thus, congressional legislation must be aimed at preventing intentional racial discrimination, not just actions that may have just an effect that disproportionately affects racial minorities. This is especially so in light of federalism concerns and the fact that, as Justice Antonin Scalia noted in Ricci v. DeStefano, the disparate-impact approach actually encourages race-based decisionmaking, which would violate the Constitution’s guarantee of equal protection.

It is possible to construe Section 2 so as to mitigate the constitutional problems that would be raised by a pure “disparate impact” statute — an important fact, since case law demands that courts construe statutes to avoid constitutional problems. This can be accomplished by interpreting the “results” language in the statute to require challengers to demonstrate a close nexus between the practice in question and actual disparate treatment (an action taken for a discriminatory purpose), and by giving defendants a rebuttal opportunity to show that they have legitimate, nondiscriminatory reasons for the challenged practice. The “totality of circumstances” test and the phrase “on account of” in Section 2 arguably add just such a causality factor and rebuttal opportunity to the statute’s “results” language.

Require that disparate “results” have a close connection to disparate treatment. A court should not impose liability where only a disproportionate racial impact has been shown. The word “results” seems to be something of a compromise between pure effects and pure intent, and the statute’s legislative history is consistent with that. As the Second Circuit stated in Muntaqim v. Coombe, “Congress did not wholly abandon its focus on purposeful discrimination when it amended the [Voting Rights Act] in 1982,” as it continued to bar only “practices that deny or abridge the right to vote on account of race or color.” Proving a violation requires more than a “showing of racially disparate effects.” Even with the “results” test, Section 2 still requires proof of discrimination “on account of race or color.” Other cases have taken this approach, too.

A plausible reading of Section 2 is that it prohibits, in addition to intentional discrimination, a practice that “results” in a disparate racial impact only if that result is “on account of race.” In the antifraud context, the plaintiff should have to show, for example, not just that a voter-ID law had a disproportionate racial result but that the result has discriminatory roots — that acceptable forms of voter ID are less likely to be held by African Americans because of past (but relatively recent) discriminatory practices.

For example, this could require proof that relatively few African Americans have valid drivers’ licenses because driving tests have been administered in a purposefully discriminatory way. In other words, the result has to have substantial roots in racial discrimination.

Allow rebuttal if legitimate, nondiscriminatory reasons for the practice are shown. Disparate-impact lawsuits typically afford the defendant an opportunity to demonstrate that the challenged practice, even if it has a disproportionate racial effect, is justified. In an employment-discrimination case, for example, defendants are allowed to defend challenged selection criteria as being tied to some important, nondiscriminatory business reason, and the same must be true in voting cases.

For instance, prohibiting children or noncitizens from voting may have a disparate impact on racial or ethnic groups if those groups contain a disproportionate number of young people or recent immigrants. But it seems obvious that states have legitimate nondiscriminatory reasons for these prohibitions. To deny states that opportunity would be impractical and bizarre, since it would seemingly require them to allow children and noncitizens to vote! This would heighten the constitutional problems presented by Section 2.

The courts have recognized that there may be legitimate reasons to impose practices that end up having disparate racial results. The litigation in Houston Lawyers’ Ass’n v. Texas Attorney General, for instance, ultimately rejected a challenge to Texas’s countywide election system for district-court judges — notwithstanding that system’s alleged disparate impact on racial-minority candidates — because the state had a “substantial interest” in maintaining a close link between the electorate and the jurisdiction over which these elected officials would preside, thereby promoting “the fact and appearance of judicial fairness.” Likewise, the Sixth Circuit held that a state’s “legitimate and compelling interest” in disenfranchising felons outweighed any supposed racial impact.

The remaining question is how great an interest the state must show in order to satisfy its rebuttal requirement: Must it be “compelling” or merely “legitimate,” or something in between (say, “important”)? The Supreme Court’s language in Houston Lawyers’ Ass’n suggests a relatively modest hurdle, and a standard requiring simply a nondiscriminatory and legitimate reason, such as ensuring integrity and public confidence in the election process, would avoid stretching Section 2 beyond the limits of the Constitution.

Conclusion. Courts should avoid construing Section 2 of the Voting Rights Act in ways that raise constitutional problems. In particular, the “results” language of the statute should be interpreted to require a close nexus to some disparate treatment and should provide defendants a rebuttal opportunity to show that they have legitimate, nondiscriminatory reasons for the challenged voting practice. Without such an interpretation, Section 2 would likely be unconstitutional, just as the coverage formula for Section 5 was found to be.